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Herzog Contracting Corp. v. Oliver12/19/2001
essment or evaluation of the site. Instead, according to GTL, the scope of its work for Herzog was limited to taking soil borings in locations selected by Herzog and in the manner and to the depths specified by Herzog, having the soil samples tested by a laboratory for the presence of contaminants specified by Herzog, and reporting the results of the laboratory tests to Herzog. GTL claimed that the work which it performed was done under the supervision, direction and control of Herzog and denied any liability to Herzog.
In February 1999, GTL filed a First Supplemental and Amended Answer and Third Party Demands. Among the parties GTL named as third party defendants were the Maryland Defendants. GTL alleged that one or more of the Maryland Defendants issued a commercial general liability policy or policies to GTL insuring it against liability for the damages and losses arising out of its business operations. According to GTL, the insurers had denied coverage, as well as a duty to defend. GTL alleged that if it were held liable to Herzog, then it was entitled to judgment against its insurers for all such damages, as well as the costs and expenses, including attorney fees, incurred by GTL in defending against Herzog*s claims.
The Maryland Defendants filed a joint answer denying the allegations contained in Herzog*s petition and GTL*s third party demand and asserted separate affirmative defenses. They denied that Maryland Casualty and Maryland Insurance had issued any policy of insurance to GTL, but they admitted that National Standard had issued a commercial general liability policy to GTL which was effective during the period beginning "3/5/88 through 3/5/89." National Standard nevertheless denied coverage and a duty to defend GTL.
On June 28, 2000, the Maryland Defendants filed a Motion for Summary Judgment seeking the dismissal of all claims filed against them by Herzog and GTL. They claimed that there was no coverage under any policy of insurance, including the one issued by National Standard, because the claims asserted by Herzog were not for "property damage" caused by an "occurrence," and further, were barred by a "professional services exclusion."
No affidavits were filed in support of the motion for summary judgment. However, a memorandum was attached which included an uncertified copy of the insurance policy issued by National Standard to GTL. The hearing date was set for July 24, 2000. On August 28, 2000, GTL filed a memorandum in opposition and a motion to strike the uncertified policy submitted by the Maryland Defendants. Herzog filed its opposition to the Maryland Defendants* motion for summary judgment on August 29, 2000. Herzog adopted GTL*s memorandum.
On September 6, 2000, the Maryland Defendants filed a "Reply Memorandum in Support of Motion for Summary Judgment" and attached the affidavit of Vaneta Smiley as Exhibit "A." Ms. Smiley's affidavit states, in pertinent part, that:
she is the Account Specialist assigned to the claim by Herzog against GTL; she initiated a policy search for any policy that the company may have issued during the period of coverage alleged by GTL; the search revealed that National Standard Insurance Company, one of the constituent companies of the Maryland Defendants, had issued policy number EPA81374191, effective 03/05/88 to 03/05/89; and, the policy attached to the motion for summary judgment was a true and correct copy of that policy.
The trial court sustained GTL*s motion to strike the uncertified copy of the insurance policy on September 27, 2000, "to the limited extent that only a certified copy of any insurance policy is to be considered in determining the merits of the Motion for
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